Acapulco Gold Pty Ltd v Wallis - [2019] VSC 414

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 01179

ACAPULCO GOLD PTY LTD (ACN 005 201 927)	Appellant
v
IAN GEOFFREY WALLIS	First Respondent
and
TECK FOOK LIEW	Second Respondent

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 June 2019
DATE OF JUDGMENT:	21 June 2019
CASE MAY BE CITED AS:	Acapulco Gold Pty Ltd v Wallis
MEDIUM NEUTRAL CITATION:	[2019] VSC 414

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APPEAL – Victorian Civil and Administrative Tribunal – Orders under Subdivision Act 1988, s 34D(1)(a) that owners corporation transfer part of common property to a lot owner in return for a payment assessed to be ‘fair market value’ – Whether Tribunal required to apply Spencer v Commonwealth (1907) 5 CLR 418 in assessing ‘fair market value’ of the land to be transferred – Whether Tribunal misapplied Spencer – Whether Tribunal had regard to irrelevant considerations – No real prospect of success on appeal – Leave to appeal refused – Subdivision Act 1988 (Vic), ss 32, 34A, 34D, Victorian Civil and Administrative Appeals Tribunal Act 1998 (Vic), s 130.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr N Jones	Ellinghaus & Lindner
For the Respondents	Mr D Colman	LFS Legal

HER HONOUR:

The parties to this proceeding are neighbours at 12 St Georges Grove, Parkville West, where there are four units. Unit 1 is owned by Teck Fook Liew, unit 2 is owned by Ian Wallis, and units 3 and 4 are owned by Acapulco Gold Pty Ltd, a company controlled by Rainer Ellinghaus. The parties are also members of an owners corporation, which owns the common property at 12 St Georges Grove. In this proceeding, Acapulco Gold seeks leave to appeal against orders made by the Victorian Civil and Administrative Tribunal, which determined a long running dispute between the parties about part of the common property.

The circumstances that gave rise to the dispute were described in the Tribunal’s reasons for decision:[1]

The property at 12 St George’s Grove, Parkville West enjoys the prime position amongst a small cluster of streets largely surrounded by parkland. Number 12 is at the dead end of the street. Beyond is parkland. The property comprises four two-storey units, set one behind the other. Each enjoys a north-eastern aspect directly abutting Royal Park. The land is affected by Owners Corporation RP 018900 (the OC).
Unit 1 fronts St Georges Grove, with units 2, 3 and 4 in a line behind it. There is a driveway along the south-western side serving all four units. … At the back of unit 4, furthest from the street, is an extension of unit 4, in the form of a granny flat which Mr Ellinghaus built in 2008 to accommodate his mother, who has since died. This small (22 m²) brick extension was built on common property beyond the end of the driveway, and largely across the back end of the site. …

[1]Wallis v Acapulco…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] VSC 414
Decision Date: 21 June 2019

CaseChat Overview and Summary

Acapulco Gold Pty Ltd, an owners corporation, appealed against a decision of the Victorian Civil and Administrative Tribunal (VCAT) which ordered the transfer of part of the common property to one of the lot owners, Wallis, in return for a payment assessed to be the fair market value of the land. The dispute arose under the Subdivision Act 1988, where the owners corporation was required to transfer part of the common property to Wallis as per the provisions of s 34D(1)(a). The central issue was whether VCAT was required to apply the principles from Spencer v Commonwealth when assessing the fair market value of the land to be transferred and if VCAT misapplied these principles. Additionally, it was argued whether VCAT had regard to irrelevant considerations in making its decision.

The court considered whether the VCAT was bound by Spencer v Commonwealth when assessing the fair market value of the land to be transferred. The court noted that the Spencer decision, which involved the compulsory acquisition of land, was not directly applicable to the present case, which involved a voluntary transfer under the Subdivision Act. The court held that VCAT was not required to apply the Spencer principles and did not misapply them. It was also determined that VCAT had not had regard to any irrelevant considerations in making its decision, as the factors considered were pertinent to the provisions of the Subdivision Act.

The court found that there was no real prospect of success on the appeal. The appeal was dismissed, and leave to appeal was refused. The decision of VCAT was affirmed, upholding the order for the transfer of the common property to Wallis in return for a payment assessed to be the fair market value of the land.

Orders